Right after declaration of its candidacy status for full-membership to EU in the Helsinki Summit of 1999, Turkey has undergone considerable reforms, in the fields of fundamental rights and judiciary including both structural and legislative changes. Particularly, strengthening the independence, impartiality and efficiency of the justice system have been the core targets. In recent years, through a number of reform and democratization packages that have been put into practice in Turkey much has been done for harmonizing the Turkish judicial system in line with the EU standards. However, there is still room for improvement with regard to existing shortcomings. In this scope, IPA II programming will provide an important opportunity to gain knowledge about the EU rules and implementations regarding the problematic areas in Turkish judicial sector and this will contribute to create solutions in compliance with the EU acquis.
For ensuring an independent and impartial judiciary, all of the institutions in the justice system should function properly and effectively. Public prosecution offices stand in the front lines concerning prosecution of crimes. Due to procedural and infrastructural problems, prosecution offices encounter problems for carrying out their duties prescribed by law which results in questioning of independence and impartiality of the judiciary as a whole structure. Through the Action, investigation techniques will be improved and relations between prosecution and law enforcement offices will be handled, thus functioning of prosecution offices will be strengthened in order to contribute to independence of the judiciary.
Until now the judges and the prosecutors were main focal points for projects aiming at increasing professionalism in the judiciary and the auxiliary personnel failed to reach well-planned pre-service and in-service trainings which could have served for better functioning of the judiciary. Since the auxiliary personnel are not selected among highly qualified people and not supported with professional trainings, judges and prosecutors take more responsibility and burden on their shoulders. This problem results in heavy workload, lengthy proceedings and dissatisfaction with the outcome of judicial proceedings. Besides, in some special judicial proceedings such as family and juvenile court proceedings, judges and prosecutors are highly dependent on assistance of technical experts who are recruited as auxiliary staff. Under IPA II programming, the auxiliary personnel including psychologist, social workers and pedagogues will be given a special attention in order to enhance their professional competence through newly developed in-service and pre-service training programmes which will be designed according to needs of their positions.
One of the main and long standing problems of the judiciary is the heavy workload of the high courts and the courts of first instance. This problem causes lengthy proceedings and detentions which results in breach of Article 5 and 6 of the European Convention on Human Rights (ECHR) protecting right to liberty and security and right to a fair trial respectively. Moreover, lengthy trials in civil, criminal and administrative judiciary diminish the trust of parties to justice irrespective of result of their cases. As complementary of the reforms introduced and being implemented in the last decade, alternative dispute resolutions mechanisms will be the focal point in the new IPA II programming. Concerning this problem, the judicial notification system will be revised in order to accelerate judicial proceedings. Through an activity on victim rights, the institutional and legal infrastructure will be improved and awareness of the public on the issue will be increased. Two separate activities will focus on problems of the administrative judiciary and they will find solutions to systemic and legislative shortcomings. Efficiency and effectiveness of the judiciary are related to many institutions. The MoJ will be the main responsible institution to propose and find solutions to mentioned problems. HCJP, Justice Academy and Council of State will be the main stakeholders for activities proposed under 2014 programming.
By virtue of the investments in the last decade, remarkable achievements have been made regarding the physical conditions in prisons and detention houses. Besides, there have been developments in enforcement practices thanks to EU funded projects. However, further efforts and projects are needed for settling the European standards in the penal system. Through activities proposed under IPA II programming, civil monitoring boards will be strengthened so that they can carry out their functions as prescribed in the law. Disciplinary and award procedures for inmates will be improved and conditional release implementation will be revised in order to prevent recidivism in prisons. DG for Prisons and Detention Houses of the Ministry of Justice will be the main beneficiary of this action.
Relevance with the IPA II Strategy Paper and other key references
Article 2 of the Treaty on the European Union (TEU) counts; rule of law, respect for human rights and democracy as the basic values of the EU along with others. Furthermore, Article 49 of the same Treaty stipulates that only the European countries meeting the values counted in Article 2 can be a member of the EU.
Identically, the rule of law is at the heart of the accession process, a key pillar of the Copenhagen criteria set out in the European Council in 1993.
Likewise the fundamental documents of the EU, also the experience of recent enlargements and the challenges faced by enlargement countries takes the rule of law into the centre of the EU enlargement. In this scope, strengthening the rule of law and human rights and creating an effective, independent and impartial judicial system are considered as an important necessity to come closer to the EU for a candidate country. The European Commission underlines this reality in the “Enlargement Strategy and Main Challenges 2012-2013” as well.
In addition, 2008 Accession Partnership Document for Turkey sets out significant number of priorities regarding the Chapter 23- Judiciary and Fundamental Rights.
In this context, during the Accession Negotiations, Turkey has proven her will to be a part of this civilization project and accomplished many reforms to adapt its national law and institutions to the EU standards. In “National Program of Turkey for the Adoption of the EU Acquis” this will was declared in an explicit way.
On the way through full membership, Turkey has been transforming her legal and institutional structure in the field of judiciary and human rights. For instance, the amendment of the structure of the High Council of Judges and Prosecutors and establishing the “individual application procedure” to the Constitutional Court are the examples of the significant developments in this sector. The reforms that were made in this field contribute to the Turkey’s long term goal of full membership and make Turkey closer to the EU because of the importance of the rule of law and judiciary. The European Commission has also given reference to this in the 2013 Progress Report.
The Indicative Strategy Paper 2014-2020 for Turkey (Strategy Paper) foresees raising the level of independence and impartiality of the judiciary as well as increasing the efficiency and effectiveness of the judiciary (including criminal justice system; juvenile courts and penitentiary system).
The Action will address all those priorities listed above.
Sector Approach assessment
According to Turkey's 10th National Development Plan (2014-2018), the main priorities in the field of judiciary are to maintain improved quality of judicial proceedings, to continue to carry out legal and institutional measures in the context of principal of rule of law, to further improve the judicial system in line with international standards and to ensure the full enjoyment of all fundamental rights and freedoms by all individuals without discrimination.
Judicial Reform Strategy is the document which has a general sector strategic framework. The Judicial Reform Strategy adopted by the Council of Ministers in 2009 is the first official document which analyzed the problems and proposed remedies for the justice sector. It was prepared by a common understanding with the participation of all stakeholders including professional organizations and NGOs. Having seen the level of implementation, the Ministry of Justice decided to revise this Strategy and its Action Plan. Necessary consultations with the stakeholders have been done and a draft document has been prepared and shared with the public on the website of Ministry of Justice.
The revised Judicial Reform Strategy will consist of the following objectives:
Strengthening the independence, impartiality and transparency of the judiciary
Improving the quality, effectiveness and efficiency of the judiciary
Implementation of measures preventing emerging of conflicts and improving alternative dispute resolution mechanisms
Enhancing the international judicial cooperation
Improving relations of judiciary with the public
Improving effectiveness of the justice organization
Improving education in the field of law along with pre-service and in service trainings
Developing implementations for women, children and disabled persons
Strengthening access to justice
Preventing violations of human rights stemming from judicial practices and strengthening human rights standards
Improving the penitentiary system
Along with the Judicial Reform Strategy, the Ministry of Justice, the High Council of Judges and Prosecutors and Justice Academy of Turkey , which are the key institutions in the field of judiciary, have prepared and published their strategic plans. These plans are prepared in a multi annual perspective and reflect the needs and remedies for problems in a systematic way. Objectives of these strategies are coherent with those in Judicial Reform Strategy and 10th National Development Plan.
Due to the structure of judiciary, there are a number of key actors in the sector. In this scope, as a policy maker and political institution in the executive branch of the State, the Ministry of Justice is the key institution for the IPA II process as indicated in the Indicative Strategy Paper. Other key institutions are the High Council of Judges and Prosecutors, and the Justice Academy of Turkey. The Constitutional Court, the Court of Cassation, the Council of State, the Military Court of Cassation, the Military High Administrative Court, first instance courts in the civil, administrative and military judiciary, the Turkish Bar Association and Association of Notaries are stakeholders in this sector
In order to fulfill its lead institution role for the judiciary sub-field, the Ministry of Justice has already set up the “EU Project Implementation Unit” within the Directorate General for EU Affairs in November 2013. This unit responsible for coordinating EU funded projects under IPA II programming. The Ministry has arranged informative meetings for the stakeholders and paid special visits to the institutions within the sector. In these meetings, the stakeholders were informed about IPA II concept and invited to prepare their action ideas to be supported under this IPA II programming. Raw action ideas were discussed and evaluated by the “Project Coordination Board” of the Ministry of Justice chaired by the Deputy Undersecretary.
In this period, Ministry of Justice held meetings with EU Ministry and EU Delegation to consult and discuss the new IPA II documents and procedures.
Apart from governmental and judicial institutions in the judiciary sub-field the Turkish Bar Association and the Turkish Notaries Association were informed about the IPA II programming and invited to submit action proposals. In addition to meetings with the key actors in the IPA II period and stakeholders in the justice sub-field, Ministry of Justice consulted with some of EU member states’ institutions and the Council of Europe to discuss prospective activities for the coming years.
The Judicial Reform Strategy includes objectives and goals pertaining to the whole justice system. The Action Plan which is a supplementary document of the Reform Strategy includes commentaries about the objectives and goals and indicates relevant activities with their time scale, responsible bodies and financial resources.
A system of monitoring and evaluation has been devised for observing the implementation of these objectives and goals. This system of monitoring and evaluation ensures that necessary action is taken to eliminate problems. Monitoring and Performance Assessment of the Justice Reform Strategy are undertaken by the Department of Information Technologies, General Directorate of Criminal Records and Statistics and Presidency of Strategy Development under the Ministry of Justice.
Strategic plans, which are regulated by the Law No: 5018 and its secondary legislation to help administrations to implement the basic concepts of the new public management and ensure that their activities are run accordingly, requires production of a performance programme and activity reports and making them public.
The performance programme and activity reports are produced each year to ensure the feasibility of five-year strategic plans, determination of resources needed, establishment and observation of plan – budget relations.
Performance indicators are set to measure the achievement of performance goals indicated in the performance programme.
Activity reports describe the outcomes of goals indicated in the performance programme along with the activities performed to achieve those goals. Thus, progress against the strategies is followed to inform the public.
In the IPA II period, which will cover 2014 – 2020, the Ministry of Justice, in the framework of sectoral approach, will undertake authority and responsibility on the issues of programming actions, creating action ideas, writing action fiches, ensuring adoption by the EU authorities, monitoring and evaluating implementation of actions, providing coordination between actions and preparing reports.
Lessons learned and link to previous financial assistance
IPA I and previous financial assistance tools have affected the reform process in the field of judiciary in a positive manner and have supported internalization of changes by members of the judiciary. Especially, changing minds and perceptions of the members of the judiciary could only be succeeded by projects implemented in the judiciary sector. It is apparent that reforms can only be reached their objectives by internalized implementation. Even the most unsuccessful project implemented under IPA I programming or other EU funds served for discussion of the problem and finding solutions in the long term. Therefore, all of the EU funded projects implemented in the justice sector contributed to the transformation of the Turkish Judicial System. EU funded projects also paved the way for members of judiciary who are the most conservative professions in the society to get acquainted with other judicial systems and colleagues. This helped to better implementation of recent reforms.
In the IPA I, experience shows that projects should be prepared in a more cooperative manner by all relevant stakeholders. Failures in ownership of project activities and some of components resulted in overall objectives not reached. Therefore, stakeholders and relevant institutions should be in close cooperation in the drafting phase of the projects.
In the IPA I term, EU support focused on more general and urgent needs of the judiciary, such as court management, criminal justice system and establishment of regional courts of appeal. In the field of judiciary more should be done in specific areas where there has been no projects under IPA I.
For instance, deficiencies in prosecution procedures have not been handled in a detailed manner. Especially, violation of fundamental rights stemming from insufficient capacity of prosecution offices needs to be paid special attention. To this end, lengthy detention periods, problems regarding the expertise of law enforcement offices, complaints of defense lawyers on access to evidence and files will be addressed under the IPA II programming.
Although the IPA I programming intensively focused on training programmes for the judiciary, the auxiliary personnel working at all instances of the judiciary could not benefit from these trainings. Providing a sound and effective pre-service and in-service training for the auxiliary personnel along with delegation of tasks will reduce the workload of judges and prosecutors and therefore speed up the judicial proceedings. In addition, special groups of auxiliary personnel including social workers, psychologists and pedagogues needs to be supported by special trainings taking into consideration of their important roles in the juvenile and family court proceedings.
Bearing in mind the dynamic structure of the legal system, new procedures and substantial legal matters need to be absorbed and internalized by all legal community. In this regard, newly introduced mechanisms for dispute resolutions such as mediation and conciliation in civil and criminal matters, along with the old but rarely used concept of arbitration will be used more effectively with the help of EU funded actions. Concerning the implementation of projects under IPA I programming, it was seen that changes in project teams affect the success and effectiveness of the project activities in a negative way. In order to eliminate this negative effect, project teams should be composed of stable personnel having the adequate linguistic skills. Additionally personnel assigned to the projects still required performing their routine work, thus they can allocate a little time to the Project. Therefore, measures should be taken to assign personnel in project teams who will concentrate solely to project activities.
Another field of action will be collection and evaluation of judicial statistics. Although projects under pre-IPA I term aimed at solving the problem partially, the statistics had not been handled specifically and problems of the field have not been sufficiently addressed. This field of study is worth for support under IPA II programming since a true roadmap for reforms can only be drawn on sound statistical information. Although, formerly two EU Projects (Judicial Modernisation and Penal Reform, and Performance Assessment and Management System for Judiciary) were implemented in the same field, this Activity will specifically focus on the training of the personnel other than those working in the MoJ and variation of data pool will be aimed. Since Turkey provides judicial statistics for many related international institutions and organizations, building up a strong and reliable statistics system will also contribute to the international field.
An EU funded project supported the reform of enforcement offices under 2009 programming year of the IPA-I. This project was implemented in 7 pilot enforcement offices relevantly small and medium sized sub-provinces. In IPA II term, quality management system for enforcement services will be handled specifically and in a detailed manner especially in big cities. Another important and problematic field in enforcement system is management of trustee storages which are used for seized goods in enforcement process. The current practice in Turkey causes serious damages, looses of seized goods, sell in undervalue prices in auctions. Therefore, trustee storages will be reformed and a system of licence and certification will be introduced.
The reforms in penitentiary institutions were supported strongly by EU funded projects in IPA I term. These projects aimed at on the one side to improve physical conditions of penitentiary institutions and on the other side to reform enforcement system as a whole. In this sense new institutions and systems in enforcement of penalties were supported by EU funded projects. However there is still room for improvement in this field. There will be more focus on individualization of execution of sentences. In order to support to rehabilitation of inmates, specific enforcement modalities will be improved taking into consideration of their personal behaviors and characteristics. The prisons’ staff will be continued to be trained since they are the most important actors in the execution regime. Since rehabilitation of inmates could only be achieved in proper physical conditions, the MoJ is eager to introduce modernized penitentiary institutions. With parallel to this policy, multi-storey modal prisons will be constructed and spread throughout the Country. Introduction of these model prisons to the system will be done in line with best practices of EU member states.
RULE of LAW
Technical Assistance for IPA II